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eDiscovery: Tips and Traps

eDiscovery: Tips and Traps. Mary Lou Flynn-Dupart David S. Curcio Jennifer Bryant Jackson Walker LLP 713-752-4200. Fun Facts to Know and Tell. GHOST/MIRROR : Complete bit by bit copy of a drive. (Not just copying data; actually reproducing the hard drive .)

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eDiscovery: Tips and Traps

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  1. eDiscovery: Tips and Traps Mary Lou Flynn-Dupart David S. Curcio Jennifer Bryant Jackson Walker LLP 713-752-4200

  2. Fun Facts to Know and Tell • GHOST/MIRROR: Complete bit by bit copy of a drive. (Not just copying data; actually reproducing the hard drive.) • LEGACY:Information from older systems no longer actively supported and not easily accessible. • METADATA:Automatically created identifying information describing the history, tracking or management of an electronic file; linked to the file, but not visible when viewing the file. • NATIVE:File format for a particular software (i.e. “.doc” for MS Word; “.xls” for MS Excel, etc.).

  3. Know Your Client (and their client) • Understand the hierarchy • Who is responsible? • Do they need expert help? • Tour the facility • What is their architecture? • Legacy systems • Proprietary software • Hardware – laptops, smartphones, etc.

  4. Preservation Process - Plan Anticipation of Litigation Notice to Client Identify Witnesses/Key Players Legal HR IT Witnesses - Work Data - Home Data - Personal email Accounts - PDAs Departing Employees - Policy for Departing Employees Auto Delete Policies - Network Architecture - Departed Employees - Backup Procedures - Initial, cost effective steps to preserve - Competency - Documentation Employee hold notice Consider Forensic Collection - Bad Actors - Criminal? - Risk Compliance Third Parties Reissue notice

  5. Litigation HOLD, Seriously • If the attorney work product privilege attaches, so does the duty to preserve. • Tell every department: IT, Legal, HR, etc. • Be SPECIFIC as to the information to be preserved. • Monitor and document compliance. • Disable automatic deletion* *BUT remember the safe-harbor (37(e)) for pre-suit deletions

  6. Pre-discovery Collection • Make sure you are working with competent employees. • Self-collection is subject to attack. • Find independent collection/storage. • Never offer to secure the data yourself and do not have e-mails forwarded to you. (You should work from a copy.) • Don’t assume that everyone knows the “obvious” (e.g. make sure everyone understands the meaning of “document”).

  7. Internal Process Workflow Data Collection Received Internal Processing Intake - Materials logged - Evidence ticket created - Evidence mounted Analysis - Create working copy - Analyze file types - Submit to attorney Review Processing - ESI Preparation - Dedupe and Filter - Exception handling - Quality control Production

  8. Avoid Overproduction • Preserve ALL • E-mail boxes • Key hard drives • Tape back up • Collect SOME • Review SOME • Produce LESS • Only what they ask for • Only what is reasonably accessible Preserve Review Collect Produce

  9. “Reasonably Accessible” Most Accessible • Active data (e.g. hard drives in use, on-line) • Offline archives (e.g. indexed tapes) • Near line data (e.g. CD’s, flash drives) • Offline storage (e.g. disaster recovery tapes) • Erased or fragmented files (e.g. “deleted” files) • Legacy data (e.g. for systems no longer in use) Least Accessible

  10. Speaking with the Enemy • Protective order • Privilege waiver: • Claw Back • Quick Peek • Format and preservation of ESI. • Personnel, subject matters and search terms.

  11. Pesky Third Parties • Who else has your client’s documents? • Are you gathering data from another client of yours? • Bank, Medical (and other) privacy laws • Requests to third parties need to be narrow.

  12. Something WILL Go Wrong • Rogue or forgetful employees • LOTUS Notes • You’ll forget if you do not write it down • The data you forget could be your own • Don’t forget about PAPER!

  13. They’re not all Federal Cases • Texas Rule 196.4: • Specifically ask for electronic or magnetic data. • Must produce what is “reasonably available.” • Requesting party bears the cost. • Weekley Homes (295 S.W.3d 309) • Courts must balance the benefit with the burden. • Sensitive information must be protected. • Look to FRCP for guidance.

  14. You can eDiscover some evidence on your own… • Aggregators • Addictomatic.com • Blogpulse.com • Boardreader.com • Omgili.com • Tweetbeep.com • Twitrratr.com • Tweetdeck.com • Archive.org (Wayback) • People Finders • ZabaSearch.com • Pipl.com • Wink.com • Zoominfo.com • Google.com • Peoplefinder.com • Spokeo.com • 411.com • Whowhere.com • Incriminating photos • Incriminating posts, tweets, etc. • Mood indicators • Lists of friends

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